This case arises out of searches of two mobile homes for methamphetamine, currency, and drug paraphernalia under a Houston County, Alabama search warrant dated January 17, 2006. (Doc. # 84-3.) One of the mobile homes was occupied by Plaintiffs Felicia Martinez (“Martinez”) and her two minor children.

Juvenal is the estranged husband of Martinez.

Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts Drive, and Juvenal Martinez was arrested.

But at the other address:

Martinez and her minor children, ages five and seven, were watching television at 7:00 p.m. when the Daleville Police Tactical Team, also known as the Special Weapons and Tactics (“SWAT”) Team, made an explosive entry into her home, located at 43 Pitts Drive, and secured the premises for the drug task force to conduct the search. (Martinez Decl. P 1; McCord Decl. at 3.) During the initial entry to the home, a “flash-bomb” or other explosive device was thrown through the window, exploding in front of one of the children watching television. (Martinez Decl. P 2.) Officers with masks, assault garb, and drawn weapons entered the mobile home by breaking down a door. (Id. P 4.) Weapons were pointed at Martinez and her minor children, and they were required to lie on the floor face-down and were not permitted to move. (Id. P 5.) Other officers, also unidentified, made a coordinated and simultaneous entry into the other mobile home located nearby [footnotes omitted]

The case here is particularly about the liability for Officers’ McCord [the commander of the Houston County narcotics unit] and Williamson;

At the time of entry into Martinez’s home, McCord was on duty watching the perimeter of the entry at 81 Pitts Drive. (Id.) At that same time, Williamson was waiting in a vehicle down the road. (Williamson Aff. P 9.) After the premises of the mobile homes were secured, Williamson entered the plaintiffs’ residence and searched the kitchen, bedroom, and the laundry room for items pursuant to the warrant, (Williamson Aff. PP 10-12), and McCord entered the residence at 81 Pitts Drive where he spent over two hours searching for evidence and interviewing the individuals found inside. (McCord Decl. at 4-5.) Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts Drive, and Juvenal Martinez was arrested.

McCord then walked the short distance to 43 Pitts Drive. (McCord Decl. at 5.) Although McCord describes his entry of the plaintiffs’ home as merely a “quick walk through” that lasted five to ten minutes, (McCord Decl. at 5), Martinez alleges that McCord and other officers involved in the search “look[ed] in every drawer in every room of her house,” “tore the front off [her] VCR,” and “caused damage to [her] car during the search.” (Martinez Decl. P 7.) Martinez also claims McCord told her that she was going to jail. (Id. P 18.) The actions of McCord and other officers “extremely distressed” Martinez and caused her to worry “that there was something in the explosive device that caused [her children] to sleep.” (Id.)

On July 18, 2006, the plaintiffs filed this action against multiple defendants, some of whom have already been dismissed as parties. In their most recent complaint, the plaintiffs allege eleven counts against McCord and Williamson for unlawful entry, unlawful search and seizure, excessive force under 42 U.S.C. § 1983, conspiracy to violate her civil rights under 42 U.S.C. § 1985, failure to prevent the violation of her civil rights under 42 U.S.C. § 1986, and six state tort claims. [footnotes omitted]

The Court decides,

due to the lack of discovery, Rule 56(f) prevents the court from reaching a judgment on the motion for summary judgment at this time with respect to Williamson for three of the tort claims.

But,

Despite Rule 56(f), there are two tort claims against Williamson that fail as a matter of law, and further discovery on these claims would be pointless. Count Seven alleges the tort of assault and battery. (Third Am. Compl. PP 95-98.) The complaint states that “the defendants touched Ms. Martinez in rudeness, in anger, or in a hostile manner, by touching her person and pointing a firearm at her head.” (Id. P 95.) Despite lumping all defendants into this claim, earlier in the complaint the plaintiffs admit that Williamson was not part of the initial, violent entry of their home during which time the alleged assault occurred and firearms were drawn. (Id. PP 20-21.) The complaint states that “[f]ollowing the assault on Plaintiffs’ (sic) and their home, the Ninja-clad officers left, to be replaced by . . . Williamson and other, presently unknown, officers.” (Id.) It is clear the assault and battery claim is directed at the officers who initially entered the plaintiffs’ home and not the officers who subsequently searched the home. Because the plaintiffs acknowledge Williamson was not one of the initial officers, and they do not allege that he ever touched the plaintiffs, the assault and battery claim against him fails.

Count Nine asserts a claim for intentional infliction of emotional distress (i.e., outrage) against Williamson. However, in Alabama, the tort of outrage is only recognized in three areas: “(1) wrongful conduct within the context of family burials; (2) an insurance agent’s coercing an insured into settling an insurance claim; and (3) egregious sexual harassment.” Stabler v. City of Mobile, 844 So. 2d 555, 560 (Ala. 2002). None of these situations is remotely applicable to the situation at hand, and thus the plaintiffs have not alleged a viable claim of outrage. Therefore, Williamson’s summary judgment motion is due to be granted as to both Count Seven (assault and battery) and Count Nine (outrage).

Those dismisses, other claims survived, including alleged “violations of various constitutional rights under 42 U.S.C. § 1983: unlawful entry in violation of the Fourth and Fourteenth Amendments, unlawful search and seizure in violation of the Fourth and Fourteenth Amendments, and excessive force in violation of the Fourth Amendment.” To be decided another day (presumably by settlement negotiations).

CASE NO. 5:06CR00047
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, HARRISONBURG DIVISION

2007 U.S. Dist. LEXIS 6610; January 30, 2007, Decided

On January 24, 2007, Dameron plead guilty to “unlawfully, knowingly and intentionally distributing or possessing with intent to distribute, or aiding and abetting in the distribution or possession with intent to distribute, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II narcotic controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) and (b)(1)(A) and Title 18, United States Code, Section 2.

The recommendation of Magistrate Judge B. Waugh Crigler, January 30, 2007, was that “the court accept the defendant’s plea of guilty to Count One and adjudge him guilty of that offense”. And “sentencing hearing hereby [was] scheduled for May 24, 2007 at 9:30 a.m. before the presiding District Judge in Harrisonburg.”

The defendant was informed that the maximum statutory penalty provided by law for the offense with which he is charged, in the case of Count One, is life imprisonment, a fine of $ 4,000,000, and a period of supervised release. The defendant was further informed that Count One has a mandatory minimum sentence of ten years imprisonment.

The sentence was 120 months (10 years, see this later habeas petition) but his obituary states “Robert Clifton Dameron, 37, of Afton, passed away on Saturday, January 28, 2012.” The obit doesn’t say how he died. It does note “He was preceded in death by his stepfather, Jerry Dameron.” Jerry’s obit from Spetember 15, 2011 states he died, age 61, at a hospital but again no cause of death is stated. This death is particularly relevant because the defendant’s ninja motorcycle was purchased by and registered to the stepfather.

THE GOVERNMENT’S EVIDENCE

The defendant waived his right to have the government’s Factual Summary read in open court and had no objection to the Summary. The Factual Summary having been filed in open court, the evidence presented therein regarding the offense charged is as follows:

On October 26, 2005, a Waynesboro police officer observed a black Ninja motorcycle speeding (55 mph in 35 mph zone). The officer pursued motorcycle with emergency lights flashing. The motorcycle accelerated and attempted to flee. A pursuit ensued. The motorcycle became boxed in by another car at an intersection. The officer ordered the driver (Dameron) off the bike at gun point. The defendant’s drivers licence [sic] was suspended and he was an habitual offender. The defendant said the motorcycle was registered to his father. The police officer notified the defendant that he was under arrest for eluding, reckless driving and being a habitual offender. As the officer examined the motorcycle, he noticed a pouch attached to the gas tank. Visible through a clear plastic window was registration and insurance information. The officer unzipped the pouch to get the information, and saw a drug smoking device containing residue. A further search of pouch revealed 526.64 grams of a substance containing methamphetamine, digital scales, packing material, 29.27 grams of cocaine and 28.8 grams of marijuana. The Officer also recovered $ 2,561.00 on the defendant’s person. The defendant’s stepfather testified before the grand jury that he purchased the motorcycle for the defendant, but kept the motorcycle registered in his (the step-father’s) name, at the defendant’s request. Stephanie Dumont, who lived with the defendant, testified before the Grand Jury that no one, other than the defendant, drove the motorcycle. The defendant’s brother, Scotty Dameron, testified before the Grand Jury that the defendant was the only person to use the motorcycle, except on one occasion. Two additional witnesses testified before the Grand Jury that they had purchased methamphetamine from the defendant in the past year. The methamphetamine was sent to the DEA lab and tested positive for methamphetamine, weighing 526.64 grams.

The defendant was subsequently arrested on May 21, 2006. A Nelson County Sheriff observed the defendant operating his motorcycle (the same motorcycle as on October 26, 2005) in a reckless manner, with the front tire coming off the pavement. The Officer pursued the defendant with his lights flashing. The defendant disappeared into a side street. Dispatch advised the officer that a citizen (a retired State trooper) had called in and said the motorcycle and driver were hiding behind a house near the street. The officer went to the house and found the defendant standing next to the motorcycle. The officer patted the defendant down and asked if there was anything in his pants that would stick or cut him. The defendant said no. The officer then located a hypodermic needle in the defendant’s pocket. Officers also recovered a black pouch strapped to the motorcycle. Inside, the pouch, officers recovered several hypodermic needles and a few grams of a detectable amount of methamphetamine. On the way to jail, the defendant slipped out of his handcuffs, and tried to get out of the patrol car. He was unsuccessful.

FINDINGS OF FACT

Based on the evidence presented at the plea hearing, the undersigned now submits the following formal findings of fact, conclusions and recommendations:

1. The defendant is fully competent and capable of entering an informed plea;

2. The defendant is aware of the nature of the charges and the consequences of his plea;

3. The defendant knowingly and voluntarily entered a plea of guilty to Count One of the Indictment; and

4. The evidence presents an independent basis in fact containing each of the essential elements of the offense to which the defendant is pleading guilty.

He was then sentenced to 120 months and habeas petition denied February 18, 2010. And now he’s dead; just five years after the guilty plea and 10 year sentence. I really wonder how he died, and was he still in federal prison?

This case involved multiple search warrants executed simultaneously, particularly a no-knock entry with alleged excessive force. This is another case of law enforcement being described as ninja because of their SWAT clothing.

Plaintiffs allege that defendants violated their Fourth and Fourteenth Amendment rights in various ways in connection with the execution of a search warrant on the business and residence of plaintiffs Duane and Donna Tolliver.

Continuing,

Plaintiff Archer was sitting at a desk in the garage of Alternators Plus when the warrant was executed. According to Archer, a law enforcement officer dressed in a “ninja suit” entered the business, pointed a gun at him and screamed for him to get on the floor. Archer later identified this officer as Deputy Grayham. According to Archer, four or five officers pulled him to the floor and one of the officers handcuffed him. After about 15 or 20 minutes, officers set Archer up in a chair but his handcuffs were not removed until approximately 15 to 30 minutes later.

And,

Officers found no contraband at the Tollivers’ business or residence and no charges were filed against any of the named plaintiffs, with the exception of Mungle.

Also,

Four other search warrants were executed simultaneously with the one at issue. Mike Tolliver, Plaintiff Duane Tolliver’s brother, was arrested, charged, and ultimately convicted of methamphetamine manufacturing as a result of items seized during the execution of these warrants.

The Court found that the no-knock entry and uses of forces were not excessive under the circumstances. Therefore,

plaintiffs’ claims should be DISMISSED, with prejudice, in their entirety and the Court will so order

US Court of Appeals for the Eighth Circuit decided US v Collins and US v Streeter in a consolidated opinion filed, June 29, 1990. At issue was the validity of the police officer’s search and also of the court’s sentencing. The Court here decides that the search and police conduct were proper but vacates the sentence of defendant Collins because of a misapplication of the Drug Quantity Table. His case is remanded for resentencing.

Despite finding no police misconduct the Court refers to D.E.A. as ninja:

a search warrant was served upon the Collins residence, and an arrest warrant was served upon Collins by four D.E.A. agents dressed in black fire-proof “ninja” outfits.

This particular case has been criticized, distinguished and superseded in subsequent cases; there is continuing dispute over how to weigh whole marijuana plants and federal sentencing guidelines.

But this case is an important case for NinjaLaw because it reveals two common language functions of “ninja” in Federal Court opinions. First, it describes attire. Second and more interestingly, it describes law enforcement personnel. Both of these attributes are trends we will see again in future NinjaLaw cases.